Standing Committee B

[Janet Anderson in the Chair]

Identity Cards Bill

Humfrey Malins: On a point of order, Ms Anderson. I want to draw attention to the appalling situation in which we find ourselves. This morning we were unable to discuss critical clauses in relation to the commissioner. I wonder whether there is anything that you can do from the Chair.
 The Leader of the House accused us on the Floor of the House of a filibuster. Given that when the knives were introduced on this Bill some time ago there was no question of a filibuster, that was most unkind, unwise and wrong of him. The hon. Member for Reading, West (Mr. Salter) accused us of one and was promptly put right by all of us. The Chairman had made no reference to filibustering. It is an appalling state of affairs when we simply cannot debate vital clauses. Is there anything that you can do about this, Ms Anderson?

Geoffrey Clifton-Brown: Further to that point of order, Ms Anderson. My hon. Friend makes a good point. Not only have two important clauses not been debated this morning, but we have almost half the Bill to debate in one sitting this afternoon. There will be more than one Division in the House, which will take out time. What is more, the Leader of the House told us on the Floor just now that the Third Reading of the Bill is to be on a Thursday, when we will get only three and a half hours at most to consider it. The Bill has in no way been adequately scrutinised by Parliament. Can you do anything to make representations to alleviate this situation, Ms Anderson?

Martin Salter: Further to that point of order, Ms Anderson. While I was happy to withdraw the term ''filibuster'' under your excellent guidance, I left on the record the fact that the Conservative party had been time-wasting. The fact that the Chairman called Conservative Members to order no fewer than nine times in the course of one morning's sitting was evidence of that.

Janet Anderson: Hon. Members will appreciate that this is not a matter for the Chairman and that it lies in their hands to keep their contributions as brief and to the point as possible, to ensure that we can get through the business in hand.

Clause 26 - Jurisdiction of Intelligence Services

Question proposed, That the clause stand part of the Bill.

Richard Allan: Clause 26 expands the role of the commissioner who was set up in the Regulation of Investigatory Powers Act 2000  to oversee and deal with problems that individual citizens have when they believe that the data collected under that Act has been misused. We seek to ensure in the clause that any complaints about the intelligence or secret services can be dealt with by the tribunal. In clause 24, which we did not debate, we explicitly excluded those services from consideration by the commissioner that was set up in this Bill. It would be helpful to understand a little more about how this measure would work.
An individual citizen might believe that information that has come into the public domain must have come from law enforcement agencies and from their entry on the register or that they are being harassed by law enforcement agencies because of something in the register. Those are the kinds of circumstances in which the citizen might think that there is a problem. 
The citizen will not know whether he is dealing with the law enforcement agencies that will be covered by the commissioner that is set up under this Bill—the national identity scheme commissioner—or with the secret service intelligence agencies that will be responsible to the intelligence services commissioner under clause 26. It is important that we get clarity about how the provisions will work in practice, so that the individual understands the situation when he comes forward with a complaint. Perhaps he will go to the national identity scheme commissioner and then be told, ''Oh no, this must go to the intelligence services commissioner.'' I am not sure how the provisions will work in practice. 
Perhaps the other area of inconsistency—of interest—that needs to be examined is the tribunal system for complaints. We need to understand how it will operate from the citizen's perspective if he has a complaint. As I understand it, clause 26 says that the complaint will be dealt with through the normal tribunal process that has been established in respect of the regulation of investigatory powers. That is concerned with bugging and the collection of personal data that an individual might put across communications networks. 
Again, we need to understand to what extent there will be a difference in treatment and the way in which their complaint will be resolved if the leakage of their national identity register data about which they complained happened at the hands of the intelligence and security services, not the police. If the intelligence and security services had created the alleged leak, a tribunal would deal with the discrepancy under clause 26. However, if it were alleged that the police had created the leak, there would be an entirely different procedure. Given the potential for citizens to become confused, I want to know how the two regimes will work. Will they operate in step or differ significantly from each other?

Des Browne: The hon. Member for Sheffield, Hallam (Mr. Allan) is right in his understanding of the clause. The nature of the work of the intelligence service is fundamentally different from that in other Departments or the police and it requires special handling. The infrastructure for that special handling exists already with the intelligence service  commissioner and it is entirely appropriate that individuals should have access to the infrastructure if they are of the state of mind to which the hon. Gentleman referred.
Alternatively, if individuals have a complaint, but are unsure where to place it, a complaint made to either commissioner will be passed to the other if it seems appropriate that the other commissioner should be the rightful recipient. It is understood that it might not be possible for the individual to know where to lodge the complaint. The usual oversight provisions will allow the intelligence service commissioner to be proactive in his investigations and supervision as set out under section 65 of the Regulation of Investigatory Powers Act 2000, which deals with the powers of the investigatory powers tribunal. The intelligence service commissioner reports annually to the Prime Minister and that report is set out similarly to the report for the commissioner under the Bill and presented to Parliament by the Prime Minister. 
I am not so sure about the second part of the hon. Gentleman's question. It is just so obscure. The provisions under the 2000 Act envisage communication from the intelligence services commissioner to a complainant or an individual and that communication should appropriately make the individual aware of the processes for further appeal or review by the tribunal. There will be no communication difficulties with individuals who are engaged in such a process and I do not understand the concern about the way in which that provision will operate. 
Question put and agreed to. 
Clause 26 ordered to stand part of the Bill.

Clause 27 - Possession of false identity documents etc.

Humfrey Malins: Amendment No. 195 would insert in clause 27, page 23, line 17, at end the words
'unless he has reasonable cause to be in possession of that document'.

Janet Anderson: With this it will be convenient to discuss amendment No. 222, in clause 27, page 23, line 17, at end insert
'unless he has that person's permission and has good reason to have that document in his possession.'.

Humfrey Malins: My amendment was poorly drafted by me when I had not taken on board requisite intention under the Bill. If the Minister agrees with me that the amendment is entirely unnecessary, perhaps he will nod.
Mr. Browne indicated assent.

Humfrey Malins: I conclude by apologising to the Committee for having wasted 30 seconds. I shall not move the amendment.

Humfrey Malins: I beg to move amendment No. 233, in clause 27, page 24, line 2, leave out 'ten' and insert 'twelve'.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 234, in clause 27, page 24, line 6, leave out 'two' and insert 'four'.
No. 196, in clause 27, page 24, line 8, leave out 'twelve' and insert 'six'.

Humfrey Malins: These probing amendments deal with the sentencing provisions. This clause creates some very serious offences. Amendment No. 233 would increase the potential term of imprisonment from 10 to 12 years for an offence under subsections (1) or (3). I will make no point on that, save that I plucked a figure out of the air to illustrate that these are grave matters. I would be interested to know the Minister's reasons for reaching a figure of 10 years for those offences.
We will debate what is covered by the term ''identity document'' when we come to clause 28. This point might be better made in a clause stand part debate, but those who deal in the apparatus designed to invent such a card are guilty of an extremely serious offence. It is not a bad parallel to consider on the one hand the drug dealer, and on the other hand the person behind the drug dealer with the necessary paraphernalia—that is the legal word—to enable the person further down the line to commit the offence. 
I would like the Minister to talk a little about sentencing policy. How does he rate the seriousness of these offences, compared with many other offences that come before the courts? However, I assure him that it is the view of Conservative Committee members that certainly some of the offences under clause 27 are very serious and that they ought to be visited with very strong penalties.

Des Browne: The hon. Member for Woking (Mr. Malins) has spoken only on amendment No. 233, which is fair, but he is seeking to make a point on proportionality, and I will address that.
Mr. Malins indicated assent.

Des Browne: However, I want to put it on the record that I resist all three amendments. I will give the hon. Gentleman an answer that is short and to the point, and that shows to him the point of proportionality from which others are drawing.
Ten years is a significant penalty; I think that the hon. Gentleman, who has had cause in another aspect of his life to impose penalties on people, would accept that. Any change to the penalty would put the offence out of step with similar offences in the Forgery and Counterfeiting Act 1981; that is the answer that he seeks. Section 5 of that Act makes it an offence for a person to have in his possession an instrument that he knows or believes to be false with the intention of inducing someone to accept it as genuine and, by reason of so accepting, to do or not do some act to his or another person's prejudice, and the maximum penalty for that is 10 years' imprisonment. If the hon. Gentleman were to indicate to me by his body language that that sets the matter in the appropriate context, I would rest my case.

Humfrey Malins: That has been a helpful response. The Minister has put the matter in context. That was all I  wanted, and I thank him for doing that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 27 ordered to stand part of the Bill.

Clause 28 - Identity documents for the purposes of s. 27

Humfrey Malins: I beg to move amendment No. 197, in clause 28, page 24, line 29, leave out ''or purports to be''.
I am certain that one or two of my hon. Friends have contributions to make on this amendment, and I look forward to hearing them. Suffice it to say that this is a probing amendment asking the Government a little more about the phrase ''or purports to be''. Something either is, or is not.

Des Browne: I am sorry that the hon. Gentleman has been disappointed by the failure of his hon. Friends to come to his aid. In the spirit of his approach to the amendment, I think that I can respond briefly.
The term ''purports to be'' is a standard form of words already used in forgery and counterfeiting legislation, and the Government do not believe that it should be removed from the clause. Without it, documents that were forgeries and that were being used in the way that clause 27 criminalises would not attract criminal penalties.

Humfrey Malins: I find that helpful, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 232, in clause 28, page 24, line 41, leave out from 'licence' to end of line 43.
I have something constructive to say on this amendment. By way of background, I should say that the clause lists and defines the identity documents. It relates back to clause 27, which deals with being in possession of false documents with an intention to commit an offence. If someone is in possession of a document that is not properly theirs, and has the intention of using it to identify themselves, that is an offence. 
I am slightly concerned about driving licences issued outside the country. The issue comes down to culpability, at the end of the day. Many people from various places who are lawfully present in this country drive cars. They can do so for one year—that is the maximum time for which one can drive on a licence from another country. After that, one is obliged to take an English test, apply for a provisional licence and so on. 
The police regularly stop a driver and, on discovering that he is not a British citizen with a British driving licence, ask to see his driving licence. In response, a foreign driving licence is produced, and that is valid for one year. But one needs to look at the purposes of the production. The purpose of producing even a doctored, not genuine foreign driving licence is  to persuade the police that one is driving lawfully; it is no more than that. 
There is a culpability difference here; Someone may seek to establish their identity by the production of an unlawful document when in fact they are here lawfully, and their only purpose in so doing may be to avoid the allegation of driving otherwise than in accordance with a licence. That kind of offence would be dealt with at a very low level in magistrates courts, and is vastly different from an offence at the top end of the scale. I have my concerns about the fact that we are dealing with such a huge range. I hope that the Minister can distinguish, both in his mind and for me, between the person whose intent is to cause serious mischief and the person whose intent is simply to identify himself, for the purposes of the driving issue only. I am sure that the Minister understands the point that I am rather laboriously making.

Richard Allan: The hon. Member for Woking made an important point and I am sure that the Minister will deal with it in summing up. However, I am keen to understand the precise relationship between clauses 28 and 27 in the hon. Gentleman's example, where an individual presents a forged driving licence to establish with a police officer, for example, that they are allowed to drive when they are not. Does that count as a clause 27 offence of seeking to demonstrate registrable facts, when it is separate from where I imagine the clause kicks in, which is when someone presents such a driving licence to get an identity card?
Do clauses 27 and 28 distinguish between the presentation of such information for another purpose, which is illegal but quite distinct from the precise purpose that I thought we were trying to tackle—in other words, somebody using a forged foreign driving licence to get on to the ID register with inaccurate and deliberately fraudulent details?

Des Browne: I need to make it clear that clause 27, which is the fundamental clause in this part of the Bill, is designed to tackle the misuse of identity documents, full stop, not just identity documents as ID cards. It is not intended to tackle the circumstances where a person may, for example, under our road traffic regulations, have used a foreign driving licence for longer than they were entitled to drive with it as proof of their ability to drive in the United Kingdom. The clause is intended to deal with people who are in possession of documents that are routinely used as identity documents when they know that they are not entitled to be in possession of them because they belong to other people or are false documents. That is clear. I thought that hon. Members understood that, because we passed over clause 27 with so little debate.
Clauses 27 and 28 have not only to be seen in the context of the identity card scheme; they are about criminalising the unlawful possession of identity documents. Consequently, there needs to be a definition of such documents. As driving licences are routinely used as identity documents, they are included in clause 28. The hon. Member for Woking seeks to delete the reference to foreign driving licences to make his point, but that deletion would leave in British driving licences and remove foreign ones. We have to resist the hon. Gentleman's amendment for that  reason, if no other. I resist it in principle in any event, because the Government's position is that driving licences, whether foreign or British, are routinely used as identity documents and their unlawful possession—whether they are forged or belong to other people—ought to be criminalised.

Humfrey Malins: The Minister's answer was helpful. I shall pose this question, although I should probably know the answer. If a person, on being stopped by a police officer, is asked to identify himself, or asked some other question that would lead him to do so—such as, ''Are you driving lawfully?''—and produces a UK or foreign driving licence that is fraudulent, or made up and invented for the purpose of satisfying the officer about the driver, such a matter is currently triable in the magistrates court. I think that I am right in saying that such an offence under the Bill would not be indictable only; if it were, the magistrates courts would be brought to an absolute halt, because such offences are so regular.
Is the Minister able at this stage to confirm whether the defendant in such a case will be caught by subsections (1) and (3)? If that is so, he will be charged on an indictable offence only.

Des Browne: For those circumstances, the hon. Gentleman might want to look at subsection (5) or clause 27.

Humfrey Malins: Yes, I suppose the question boils down to what the prosecuting authorities decide to charge. I would not want the magistrate's courts to find themselves swamped with cases which immediately, because of the sentencing powers, have to be transferred by way of clause 6 to committal.

Des Browne: It is envisaged that those who make decisions about prosecution will take into account all of the relevant circumstances as to whether or not to prosecute. Proportionality—whether it is appropriate to prosecute—is a circumstance that prosecuting authorities should take into account. As for penalties in the circumstances that the hon. Gentleman figures—a distinction that the hon. Member for Sheffield, Hallam might benefit from as well—there are proportionate penalties in subsection (7).

Humfrey Malins: The Minister is right. The point was worth laying before him. I am satisfied with his reply. As far as amendment No. 232 is concerned, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Geoffrey Clifton-Brown: I beg to move amendment No. 223, in page 24, line 43, at end insert—
'(i) an official Birth Certificate.'. 
I welcome you to the Chair, Ms Anderson. 
The clause seeks to make obtaining by forgery any number of important documents an offence. In order to obtain a passport, one of the official documents that has to be produced is a birth certificate. The clause will be particularly important in the initial issue of an identity card and, while one would not ordinarily carry a birth certificate around to prove identity, we need to ensure that the whole system is robust. If it is not  robust, it will be brought into disrepute. I imagine that for those who do not have passports, a birth certificate is one of the documents that they will be required to produce when the identity card is initially issued. 
Anecdotally, a number of people are able to obtain false passports by first forging or obtaining a birth certificate that is not properly and lawfully issued. There is a case, at least, for including a birth certificate within the clause. If the Minister thinks I am wrong, I will be interested to hear his explanation why.

Des Browne: The response to the understandable argument of the hon. Member for Cotswold (Mr. Clifton-Brown) is twofold. First, the forgery, alteration or attempted use thereafter of a birth certificate already comes within the Forgery and Counterfeiting Act 1981. The Act, as I have indicated, has similar penalties to those being promulgated here. In addition, it would be an offence for someone to have within their custody equipment designed for the making of birth certificate copies. The offence is liable to the same penalty as a clause 27 offence. Otherwise, the answer to the hon. Gentleman's argument is that an official birth certificate is an inappropriate addition to this list because it is not an identity document, but the record of an event.
I must admit that, as I read that, I thought that of course a driving licence was not an identity document either in that sense, but evidence of an individual's ability or legal capacity to drive in this country. When I thought of that, my inclination was to go away and think again. However, I then recollected that a birth certificate specifically states: ''This is not an identity document.'' It would seem inconsistent to define it as an identity document in a piece of legislation, given that there must be a statutory basis for that statement.

Geoffrey Clifton-Brown: I hear what the Minister says, but a birth certificate is one of the documents that one is required to produce to prove one's identity while obtaining a passport. For that official purpose, it is regarded as an identity document. When an ID card is first issued, people will have to produce proof of identity, presumably. If they do not have a passport or a driving licence—there must be a number of people in this country with neither document—the next document that everybody has or has had at one stage is a birth certificate. It is a universally applied document, and although it may state that it is not an identity document, it is regarded as such.

Des Browne: The hon. Gentleman opens up an interesting area of debate. The facts that I am aware of show an apparent contradiction between practice and the legal position. I am afraid that with the information that I have at present, I am not able to untangle that conundrum for myself, never mind for the Committee. However, I know that a birth certificate is not accepted on its own for passport applications, which the hon. Gentleman mentions.
I am not prepared to concede that a birth certificate is accepted as an identity document because it states specifically that it is not one. I suspect that it is included in the passport application process to communicate the facts that it conveys about the  event to those required to make a decision about the issue of a passport, if that is not too convoluted a way of putting it. 
I resist the amendment for the obvious reason that a birth certificate has clearly emblazoned on it ''This is not an identity document''. To agree to the amendment in that context would create a statutory contradiction. However, I shall think about the matter and, if necessary, come back to Parliament about it.

Geoffrey Clifton-Brown: In view of the Minister's very reasonable reply and the fact that he will reflect on the matter, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Richard Allan: One other area of clause 28 remains of interest: the definition of the UK driving licence in subsection (3). That refers to the licence itself, and, in paragraph (c), to the counterpart of the licence. It is worth highlighting the strange legal status of the counterpart. I do not know, Ms Anderson, whether you have ever lost your driving licence. I have lost the counterpart on a couple of occasions; it is very easy to lose. One carries the photographic card, but the counterpart gets lost.
If a person rings the DVLA and says, ''I have lost my driving licence,'' it asks whether they have lost both parts or one. If the person has lost only the counterpart, the agency says that they have to go to the post office, fill in a form and send in a cheque—a huge bureaucratic process. If the person asks what would have happened if both parts had been lost, the agency says that it would ask for their Switch card number and send a replacement licence by first-class post. So the person puts the phone down, rings back and says, ''I have lost my driving licence.'' The DVLA asks, ''Have you lost both parts?'' and the person says, ''I have now.'' 
The counterpart of the driving licence has a weird legal status. One has to reclaim it if the licence is still in existence, but if the whole thing is lost, that is fine. That situation seems replicated in a curious way in the matter under discussion. It strikes me that the ID bit is the photographic card, and the counterpart has an odd status. We are replicating what happens elsewhere, but sometimes it is worth highlighting that what happens elsewhere is a bit ridiculous.

Des Browne: I have some knowledge about the importance of these two parts of a driving licence, and I shall quickly share it. When was I was a Northern Ireland Minister, we used photographic driving licences long before they were available in the rest of the United Kingdom. We used them as proof of ID in the context of the interdiction of electoral fraud. Concern was expressed about people being denied their vote because they did not have both parts of the driving licence. Both parts made up the driving licence. If I am wrong, I shall write to members of the Committee, but I suspect that the root of the provision lies in the road traffic regulations on driving licences  under which the licence is both parts, so that people understand that to have in their possession in relevant circumstances just either part of the licence would be an offence. Such a rule has been included in the Bill to clarify matters. I was interested in the hon. Gentleman's short anecdote about what I think was his telephone call to the Driver and Vehicle Licensing Agency in Swansea.
Question put and agreed to. 
Clause 28 ordered to stand part of the Bill.

Clause 29 - Unauthorised disclosure of information

Humfrey Malins: I beg to move amendment No. 230, in page 25, line 24, after first 'he', insert 'knowingly or recklessly'.
T

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 231, in page 25, line 26, after 'he', insert 'knowingly or recklessly'.
No. 141, in page 25, line 44, at and insert— 
'(4A) It is also a defence for a person charged with an offence under this section to show that the provision of information or the making of the other disclosure in question was in the public interest.'. 
No. 229, in page 25, line 38, leave out paragraph (c).

Humfrey Malins: We have moved to an important clause, which makes whistleblowing an offence. It will be a criminal offence to disclose confidential information without lawful authority to others, such as journalists or loyal members of Her Majesty's Opposition, and information learnt during the course of employment by individuals who have responsibility for
''the establishment or maintenance of the Register; or . . . the issue, modification, cancellation or surrender of ID cards'',
which is deemed to be confidential. 
I shall begin by speaking to amendments Nos. 230 and 231, which go together. Under clause 29, a person is guilty of an offence if, without lawful authority, 
''he provides any person with information''
that he should not provide. I read the rest of the clause to see whether there were any defences. I was not looking for the whistleblowing provision, but I found the first reference to a defence under subsection (4). Let us assume that I work in such areas and I supply someone with information, because of negligence on my part, utterly accidentally. It cannot be impossible that I supplied information accidentally, not intending to cause any harm nor necessarily aware at the time that I had carried out such action. 
I could not avail myself of subsection (4) because that would enable me to have a defence if I could show that, at the time of the alleged offence, I believed on reasonable grounds that I had lawful authority to provide such information. I could not possibly say that, because it would not apply in my circumstances. I put before the Committee the proposition that someone can supply another person with information somewhere between accidentally and negligently, but without what might be described as a level of criminal intent. 
Such a person would not have a defence under the clause, which is why I want ''knowingly or recklessly'' inserted into the clause. There might be a better phrase than that. ''Reckless'' is not a word that actually commands great respect in criminal law at present, and has not done since the case of Caldwell. I am trying to cover the morally innocent person who supplies information to another accidentally or carelessly, but without the intent to cause a problem. The position of the whistleblower is different, because he or she supplies the information wholly and intentionally with a purpose. I shall deal with that in a moment. However, in amendments Nos. 230 and 231 I am trying to cover an individual who has, at worst, been negligent. 
Amendment No. 229 would omit paragraph (c). Subsection (3)(c) states: 
''information is provided or otherwise disclosed with lawful authority if . . . it is made in pursuance of a Community obligation''.
I have no idea what community obligations are. By seeking to omit paragraph (c), I can at least draw from the Minister some explanation as to what is meant by ''a Community obligation''. 
Amendment No. 141 would widen subsection (4) to say that it shall be a defence if 
''the provision of information or the making of the . . . disclosure was in the public interest.''
That is a public interest, or whistleblower, defence. Because such worlds are too complicated for me, I cannot envisage circumstances in which a whistleblower may want, or feel it essential, to provide some information to the public via the press or someone else. However, whistleblowers have been badly treated by Governments over the years, and the Government, on this occasion, ought to consider carefully our amendment on whistleblowers and the issue of public interest. Perhaps the whistleblower wishes to make public some dreadful scandal—I cannot say—but at least amendment No. 141 gives the Minister an opportunity to speak to us, hopefully at some length, on whistleblowing and a possible whistleblower's defence.

Richard Allan: In respect of the amendment moved by the hon. Member for Woking, which would insert the words ''recklessly and knowingly'', we may differ on that matter. We have been accused of being woolly liberals throughout most of the debate on ID cards, but in respect of measures that are included to protect privacy we will join the hon. Gentlemen opposite in the leather-clad authoritarian camp, which is perhaps the converse of a woolly liberal. We believe that if private data is included, there needs to be some protection for it, and the best way to do so is to ensure that there are clearly specified offences for people who breach those levels of protection.
However, we are in sympathy with the hon. Member for Woking on whistleblowing and joined him in signing amendment No. 141. I can imagine circumstances under which whistleblowing may be appropriate. Someone in the hierarchy may seek to ensure that someone is issued with an ID card who should not have one, or has no entitlement. If that is so  and an operator in the system becomes aware of a card being issued falsely, we want to be clear that they can come forward and declare to the authorities that that has happened without them being at risk of committing an offence. 
I can also imagine circumstances, following those that we discussed earlier, where there is an abuse of the system. We have set out a series of safeguards governing how law enforcement agencies and others, including public authorities, can use the data in the national identity register. An operator of the register may become aware of wholesale trawling and searches that appear to be outside the scope of the law, and an agency might, for whatever reason, have taken it upon itself to use the data in a way that was not intended to be unlawful. If the operator came forward again and reported that appropriately, are we clear that they could do so without falling foul of the legal provisions in clause 29? The original drafting of the clause does not make it explicit that they could come forward and do that. 
Amendment No. 141 has been tabled in order to get those assurances, and that is why we have associated ourselves with it. The Minister should be able to put on the record that an individual who became aware of some form of abuse of the system would not be liable to prosecution if they came forward and reported that.

Geoffrey Clifton-Brown: I rise briefly to make a point that is slightly wider than the amendments, but I hope that you will consider that to be in order, Ms Anderson, as we seem to be adopting that as our process, and then not having a clause stand part debate.
I am concerned about clause 29. Its first lines state: 
''A person is guilty of an offence if, without lawful authority—
(a) he provides any person with information that he is required to keep confidential''.
This is another clause that has much wider ramifications than merely identity cards. This is labelled as an identity card Bill, but as we scrutinise it in depth we find that a number of its provisions go far wider than that. The Minister shakes his head, so I might have got the wrong end of the stick on the measure I have just quoted, but it does not say that it is related to identity card offences. It is a completely bland and general statement.

Des Browne: The hon. Gentleman should read further. Subsection (2) greatly narrows the circumstances in which a person can commit that offence, and brings it within the four corners of the Bill.

Geoffrey Clifton-Brown: I accept the Minister's point; he is right.
Therefore, I move on to amendment No. 141, which I call the whistleblowing amendment. We need some positive assurances on that. The recent history of whistleblowers shows that they tend to get punished for disclosing facts that turn out to be in the wider public interest. The Bill is pretty draconian in terms of what the state can and cannot do. Let us suppose that there was a level of collusion at the top of some of our organisations and that, because of the secrecy  provisions imposed by the Bill, that would never come out into the public domain if it were not for the activities of a whistleblower. We want to encourage whistleblowing. I think that that has been Government policy in the past, although they seem to have forked tongues on this issue; sometimes they seem to encourage the activities and aspirations of whistleblowers, and yet they also appear to punish them. Therefore, it is difficult to know where the Government stand.

Humfrey Malins: I have two brief points. First, juries have historically always been very sympathetic to whistleblowers—not unnaturally, because of public interest. Secondly, my hon. Friend may recall that a diplomat in one of our east European embassies blew the whistle on what was thought to be dishonourable conduct by certain people seeking to enter this country, and on the fact that it was thought that the Home Office was rubber-stamping applications improperly. He felt that that should be drawn to the attention of the wider public, and it could be argued that he performed a good service.

Geoffrey Clifton-Brown: My hon. Friend must have clairvoyant powers, because I was about to go on to give the Committee precisely that example. I will not repeat it, but there are other examples. There have been two serious examples of whistleblowers in the European Community, both of whom have lost their jobs; one of them subsequently brought down the entire Commission by blowing the whistle on corruption with regard to the European Union budget.
Therefore, the activities of whistleblowers sometimes do the public a great service. I hope the Minister will make some fairly positive comments, and speak at length about why he will—or will not—accept amendment No. 141. We want to encourage whistleblowers, because things can otherwise be covered up and might not come into the public domain.

Des Browne: I will deal with amendments Nos. 230 and 231 first. They seek to provide that a person would be found guilty of an offence of ''unauthorised disclosure'' of information only if they ''knowingly or recklessly'' disclose to another person information that they are required to keep confidential. That information is defined more precisely later in the clause.
The hon. Member for Woking is consistent. He has consistently attempted to make liability dependent on intention throughout the Bill and he seeks again to do so. I give him the same response as I always do in that regard: the amendment is unnecessary. 
On a fair and proper reading of it, subsection (4) provides a defence for someone who believes on reasonable grounds that they had authority to provide the information at the time they provided it. Therefore, it covers anybody who is acting in good faith. It will cover a person who acts accidentally. Such a person has a mens rea that they believed that they  were acting properly at the time. That is the very essence of accident.

Humfrey Malins: It is quite the opposite.
If I were to go through a red traffic light accidentally, I, potentially, would have no knowledge that I had done so. I have no idea how I am expected under the clause to supply the information. If I were accidentally but negligently to press wrong buttons, put something into the wrong envelope, or get through to the wrong telephone number and start spilling the beans before I knew who I was talking to, that would involve accident. However, I could not then stand up and say, ''My defence is that I believed on reasonable grounds that I had lawful authority to do what I did.'' I would have had no such belief, because I was being negligent. I would have had no belief either way. Does the Minister not understand the subtle difference that is involved?

Des Browne: With respect to the hon. Gentleman, he is being too subtle with his difference. I might have to defend someone who went through a red traffic light accidentally. Even if they were required to do so, they would be convicted because going through a red traffic light is an absolute offence. It does not matter what the person's state of mind was.
Someone cannot commit the offence that we are discussing in the circumstances in which the hon. Gentleman figures that people would be acting; the proper interpretation of subsection (4) allows for the defence I mentioned.

Humfrey Malins: There are circumstances in which going through a red traffic light involves an exact parallel. I could go through knowingly, in a hurry, and I would be guilty of an offence. I could go through utterly accidentally, not seeing the red light, and I would be guilty of an offence. Another circumstance would be when I go through it because the alternative of putting my brakes on would result in a major crash involving vehicles behind me. That is more on a par with reasonable excuse. That is subtly different in its context from the accidental provision to which I am referring, which could be opposed to my justifying my conduct.

Des Browne: I have the utmost respect for the hon. Gentleman, as he knows, but I think he stretches his analogy far too far. The circumstances that he figures are in my view, and in that of the Government, covered by subsection (4). I ask him to accept that assurance from me. He asked me why and I say that they are covered because a person who acts in the way that he described believes that they are doing their job, albeit they might be mistaken. They have reasonable grounds for acting in the way that they did, albeit they were mistaken. They could not be convicted of the offence.
I will now discuss the defence of public interest. I listened carefully to what hon. Members have said in relation to whistleblowers— 
Sitting suspended for a Division in the House. 
On resuming—

Des Browne: I was about to come on to whistleblowing. To contextualise my remarks, I should say to the Committee that the principal purpose of the clause is to prevent unauthorised disclosure of personal information. That is the objective. Such disclosure is a menace that I am sure the Committee thinks it appropriate to interdict in this way.
Hon. Members are of course right to say that the provision will also criminalise the unauthorised disclosure of other information, such as the audit trail information in paragraph 9 of schedule 1, or any information related to the functioning of the scheme that comes into the possession of an individual in the context of clause 29(2). 
The point that I was about to make before we left to vote was that Labour Members share the interest of Opposition Members in allowing public interest disclosure when it is appropriate. I remind Opposition Members that the Public Interest Disclosure Act was not passed until 1998. That, of course, was the year after a Labour Government came to power following 18 years of Conservative government. During those 18 years I do not think that an attempt was made at making equivalent legislation. I cannot for the life of me remember how Opposition Members voted on the 1998 Act and whether they supported it, but I am sure that they remember. If they are late converts to public interest disclosure, they are all the more welcome. 
It is entirely appropriate that, in the circumstances that hon. Members figure, people to whom the clause will apply should have an opportunity to bring their concerns to an appropriate authority. I accept that there may be cases in which they feel that bringing those concerns before their management is not appropriate. Under the scheme and the Bill, those people will have access to a number of commissioners who are entirely independent of the Home Secretary—the Secretary of State—and the Government, and they can make their complaints to them. An appropriate procedure is laid out in the Bill for the investigation of some complaints. In my view, there is a comprehensive set of circumstances for investigation in the Bill, should people wish to make such complaints to the commissioner. [Interruption.] The hon. Member for Woking asks what clause that provision is in. It is the clause that we debated this morning—

Humfrey Malins: Did we?

Des Browne: Sorry, the clause that we agreed would stand part of the Bill this morning, which set up the commissioner for this scheme and the intelligence services commissioner for those circumstances relating to security matters. In my submission, that construct provides a more than adequate opportunity for anybody with concerns that could normally be described as those that lead to whistleblowing. There is no need for an additional provision in those circumstances. 
Amendment No. 229 would exclude from the definition of ''lawful authority'' disclosures made 
''in pursuance of a Community obligation''.
It is interesting how often, Pavlov-style, the Opposition react to any reference to the European Community. The provision is intended to cover any EC regulations that have direct effect, rather than requiring implementation in UK law. Without reference to regulations that may have direct effect, there will not be the necessary coverage to allow a person to say that they had lawful authority by the state of the whole law that applied to the United Kingdom when they made the disclosure.

Humfrey Malins: I am very unclear on this matter, which is entirely my fault. Are there Community laws that override our laws on whistleblowers and the clause?

Des Browne: No. I suspect that the hon. Gentleman is being slightly mischievous. As he knows, our domestic law is now made up of, among other things, EC regulations that have direct effect. That has been the situation ever since the Conservative party took us into the European Union, as it now is known. I would have thought that Opposition Members had got used to that by now.
If one is seeking to set out the parameters of ''lawful authority'', one needs reference to the possibility that one may be seeking legislation as a direct effect and that comes from Europe. ''Lawful authority'' is properly defined if it is so defined by reference to such legislation. I have nothing further to add. I hope that the amendments will now be considered unnecessary.

Geoffrey Clifton-Brown: I am still concerned about the Minister's explanation of public interest disclosures. What the Secretary of State—or, indeed, the commissioner—considers in the public interest may not be the same as what the general public would consider in the public interest. We saw that in the example given by my hon. Friend the Member for Woking. The instance that he gave was passed to the Government quietly. It was not until it was put into the national press that anybody took any action and, because it was in the national press, the employee concerned lost his job. We need a little more assurance that a whistleblower will not be caught by the provision before I can urge my hon. Friend to withdraw the amendment.

Des Browne: The hon. Gentleman is entitled to act as he feels he must on this amendment, as is his hon. Friend. The Official Secrets Act, for example, does not have a public interest defence because it provides that if the information has been disclosed the damage is done and it is too late to undo it. The same view applies in this case.
I would not want the Bill to allow a person to put information about another individual in the public domain and defend that through a public interest defence, because the damage would then be done to the individual. Important private information about individuals is to be held in the register. With respect to the hon. Gentleman, I am not going to write into the Bill a carte blanche that allows people to do such damage and subsequently hope that they may able to  persuade some court or other that it was in the public interest—particularly when there is adequate opportunity for them to make complaints of the sort that hon. Members figure may be appropriate for a person to blow the whistle on, to one of a number of commissioners.

Geoffrey Clifton-Brown: I said before the Division that I am not worried about a whistleblower who deliberately blows the facts on an individual to get some sensation about them on to the public record. It would be reasonable for a whistleblower to be caught in such a case. I am more interested in when the system—the commission—does things that are not in the public interest. We have heard a lot about things that can be done without an individual's consent. Let us suppose that there was collusion along the line, people's affairs were being investigated unreasonably and the only way that that could be brought to the public's attention was by a whistleblower, and then the whistleblower gets caught by the provisions. Does the Minister agree that that would not be in the public interest?

Des Browne: I understand the point that the hon. Gentleman makes, but he is forcing his argument into a corner into which it will not fit. There is already a construct in the Bill that allows supervision to ensure that it does not operate in the way he suggests. The appropriate person with whom to lodge a complaint about such a matter is the appropriate commissioner. I cannot figure circumstances where there will be collusion between the commissioner, the police and those with responsibility for the scheme that will leave a person with no alternative other than to disclose such information. The whole system would have to have chronically broken down. The independence of the commission would be called into question in those circumstances. I cannot believe that the scheme could continue to function at all if those circumstances pertained.

Humfrey Malins: In so far as whistleblowers are concerned, my hon. Friend the Member for Cotswold has raised some good points.
We are not entirely satisfied with what the Minister has told us this afternoon. He has said that the person who provides this information purely accidentally, although possibly negligently, but with no mens rea to cause an offence, will not be prosecuted. That is helpful to know. These words are in Hansard and we know that such a person, on the Minister's very wording, will not be prosecuted. 
The point about the community obligation remains interesting, but not fully explained. Having said that, I acknowledge that the Minister has given me his best explanation and, courteously, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 198, in clause 29, page 25, line 32, after 'issue', insert 'manufacture'. 
The amendment—here for the sake of tidiness—is simple stuff. If a person can be involved in all the other processes, should not ''manufacture'' be included to cover all eventualities and to ensure that there is no unnecessary unauthorised disclosure of information?

David Curry: I wonder what would happen if the cards were being manufactured overseas.

Patrick Mercer: That is an extraordinarily good point; they are highly likely to be manufactured overseas. Funnily enough, I have examples of cards here—Italian and American. As my right hon. Friend says, neither is manufactured in the country in which it is to be used, so that is an apposite remark.

Des Browne: The Government believe that the amendment is unnecessary, as those who manufacture cards are not likely to have—indeed, will not have—access to any confidential information on individuals. The issuing of the cards is the relevant point at which the information is put on the card. The manufacturer will produce a blank card—possibly with an empty chip—which will not involve information held on the register.
The important issue is the personalisation of the card and/or chip. That is when the information is tied to the card. That is clearly covered by ''issue'' in terms of the activity that gives a person access to information. ''Manufacture'' is unnecessary and I resist the amendment. 
In an intervention, the right hon. Member for Skipton and Ripon (Mr. Curry) sought to draw me out as to where the cards will be manufactured. At this stage, I do not know.

David Curry: It is possible that the cards could be manufactured overseas. If we book a ticket on British Airways at the travel office, that ticket is going to be printed out in India. The offshoring of large—[Interruption.] No, a great deal of computer processing takes place in India. The manufacture of cards taking place overseas is entirely possible and would be economic. The cards could be brought back to the United Kingdom in batches under conditions of high security.

Des Browne: The right hon. Gentleman suggests that such manufacture of cards is a possibility. He may be right. Manufacturing might be carried out somewhere beyond the United Kingdom. I am concerned about the issuing of cards, which is the point at which personalised information is put on to them and when the criminal offence bites. I am satisfied that the clause as drafted will allow us to protect that stage in the process, so I will not accept the amendment.

Patrick Mercer: All that I can do is to accept the Minister's reassurance that the manufacture of the card is not the crucial part of the process, which is the point at which the information is inscribed, squirted and electronically put on to the card one way or another. I am grateful to him. The matter has clearly been thought about and is covered by the clause. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Richard Allan: We still need to deal with other points arising from the clause. The jurisdictional argument of the right hon. Member for Skipton and Ripon is important. The clause aims to ensure that people are deterred from divulging information from the national identity register. This is about not only issuing the card, but keeping secret the information that is held on the register. It seems that, if the data are to be processed outside the jurisdiction of the United Kingdom, serious questions must be asked about the extent to which we can rely on the safeguards under the clause. Safeguards mean something only if we can take action against people who have disclosed data without authorisation.
It would be helpful to receive information from the Minister about the Government's intention. Will the processing of the national identity register take place only in the United Kingdom? If not, we want him to assure us about the likelihood of action being taken against, for example, a data processor in the Philippines or in countries in which such work takes place. If that data processor disclosed data, such matters would relate to whether the offence was extraditable and how enforcement action could take place. 
We are looking for an assurance that such matters will be processed within the United Kingdom, as a result of which clause 29 measures may be taken against data processors if they breach confidentiality. If such matters are processed outside the United Kingdom, we must understand how the clause will act as a deterrent in such circumstances. 
As for the offences, legal remedies will have to be invoked. Experience of the police national computer, which is an equivalent process, shows that powers have had to be invoked. Processing agents have taken data from the police national computer, often in the context of marital breakdowns and domestic disputes, and released the whereabouts of a person. I recently read of a case in which someone was prosecuted and rightly sentenced for such action. We must recognise that it is likely that clause 29 powers will have to be used and understand the extent to which we can depend on them. 
I do not have to hand details of penalties for comparable offences. For example, I would have thought disclosure from the police national computer, the Criminal Records Bureau and national health service records to be comparable areas where we wish to see whether offences under the Bill will bite in a similar way and have a common understanding of how they kick in. 
As for understanding the seriousness of disclosure, in another debate we touched on people who take part in witness protection programmes. That remains an issue of concern. We debated the fact that the Secretary of State will deliberately be able to create false entries in the register to protect people under witness protection programmes. We can imagine that such data will be a major target. If the national  identity register were entirely comprehensive, some people who we will be dealing with under the clause will have been induced to disclose data in an unauthorised way to get back at people who had given evidence in multi-million pound cases as well as criminal, terrorist and other serious cases. 
The inducements will be serious. We want to know that people will face suitable penalties if they disclose data in cases when the potential outcome is the most serious of all because, when an individual's new identity is exposed, they will often face the threat of death. 
The final concern involves subsection (3)(b), which deals with the lawfulness of disclosing information 
''in pursuance of an order or direction of a court or of a tribunal established by or under any enactment''.
That opens up the possibility that personal data of the kind that we have talked about—the audit data in paragraph 9 of schedule 1—will be disclosed under court orders in a lawful way. The public need to understand the breadth of this provision. 
We discussed the hurdles that have to be cleared if law enforcement agencies want to access this data. Court orders may be very broad. There is some evidence of that from the field of internet data; people have used Police and Criminal Evidence Act 1984 powers, and in some civil cases there have been attempts to get data about what people have been doing on the internet. The courts have created an order and those data have had to be disclosed. 
With regard to subsection (3)(b), I can envisage a wide range of circumstances in which we would think we had safeguards in place. If the police wanted to launch a prosecution, they would not be able to access the data, because unless they could prove serious criminality they would be told, ''You cannot have all these audit data.'' However, somebody else who is going through a matrimonial case or another case in court and who wants to prove a point may be able to secure a court order that unlocks all those data and may release them from the system. As we create this system, people need to be aware that such circumstances may apply and that some safeguards put in place by clause 29 may be bypassed by many forms of potential authorised disclosure. 
The tribunals point is important. I am surprised by the large amount of data that can be disclosed to tribunals, particularly industrial ones. I foresee circumstances in which the audit trail data in particular may be cited in industrial tribunal cases: somebody might want to prove that a person was in a particular location at a particular time and might seek that disclosure through the tribunal. It seems that that is lawful under this provision. 
Some important issues are raised by clause 29, and I would appreciate responses to all of them. One of the big questions involves the ability to take effective enforcement action, particularly in the context of not understanding where the data will be processed and not having, as yet, any assurances that that will take place within UK jurisdiction.

Des Browne: The hon. Gentleman raises a number of interesting points that merit answers. I will answer to the extent that I am able to do so.
The hon. Gentleman asks if it is a proper interpretation of this part of the Bill that this offence can be committed only within the UK? The answer to that is yes, to the extent that what is known as the actus reus—the actual action—would need to have taken place in the United Kingdom before the UK criminal courts would have jurisdiction. There are circumstances involving some very serious crimes where the UK courts take jurisdiction for crimes committed anywhere in the world. War crimes is an obvious example. There is a statutory basis for that, and we know why that should be the case. However, for these offences, jurisdiction will be restricted to an actus reus in the UK. 
The hon. Gentleman asks where the processing of that information will take place. At present, I cannot give him the certainty he seeks, because the procurement process in relation to certain parts of this scheme are required by EU law to be open. That aspect will be as open as possible so that the Government can be assured that they get best value for money. However, I can say that the agency issuing the ID cards will be UK based, and it is intended that that agency will build on the UK Passport and Records Agency. 
I am very mindful of the fact that the law on procurement allows the Government to restrict matters to UK-sourced procurement, if that is necessary on grounds of national security. All those issues will be taken into account. I already see arguments on the points mentioned by the hon. Gentleman, because those points are related to potential national security issues. There will be arguments for ensuring that we can hold jurisdiction on such activities appropriately so that penalties can be brought to bear on the relevant people. 
The hon. Gentleman asks about the proportionality of the penalty and for some indication of equivalence in other legislation. Under section 9 of the Rehabilitation of Offenders Act 1974, disclosure of spent convictions attracts a maximum sentence of six months. Offences under section 59 of the Data Protection Act 1998 attract a maximum penalty of a £5,000 fine. The penalties envisaged in clause 29— 
''imprisonment for a term not exceeding two years, or . . . a fine, or . . . both''—
are not disproportionate to the equivalent provisions in other statutes. 
I understand why the hon. Gentleman says that such actions could be conducted in the context of much more serious behaviour. If there were evidence that a person was party to a conspiracy such as he figures, I suggest that they would be prosecuted for something much more serious than the unauthorised disclosure of information from the identity register. Perhaps there would be an alternative charge as a fallback position, in case the principal behaviour was not properly criminalised. I do not think that I have anything further to say; I have covered the three issues.

Richard Allan: The additional point—just to be clear across the Committee—is that there is that breadth of possible disclosure in the context of court orders and tribunals. The public need to be aware that such disclosure is potentially much broader than that in criminal investigations.

Des Browne: The simplest answer is that the hon. Gentleman is right. He will accept it from me that it would be entirely inappropriate for Parliament to fetter courts that might properly make such orders in appropriate circumstances, bearing it in mind that such orders will not be made willy-nilly and will be subject to the normal rules on the disclosure of evidence or information.
It would not be appropriate for Parliament—having allowed the courts for many decades, if not centuries, to make such orders—to seek to restrict them. However, the hon. Gentleman is right to bring the issue to the attention of those who may be interested. 
Question put and agreed to. 
Clause 29 ordered to stand part of the Bill.

Clause 30 - Providing false information

Humfrey Malins: I beg to move amendment No. 228, in clause 30, page 26, line 15, leave out from 'false' to end of line 16.
I seek nothing more than an undertaking from the Minister that he will reconsider clause 30(2)(b). The amendment would remove the words 
''is reckless as to whether or not it is false.''
I shall give the reasons for reconsidering the provision. It deals with someone who provides false information to someone else, perhaps in confirming the contents of an entry in the register. Such a person providing false information would be liable to penalties. 
Clearly, the Minister has tried to assist the defendant by saying that the defendant has to know or believe the information to be false. That introduces an element of moral culpability—that is to say, the matter goes beyond the actus reus and involves some form of mens rea. 
My point is that ''reckless'' is a very difficult word. It is increasingly frowned on in criminal law. In road traffic legislation, there used to be a charge of driving furiously. I am not even sure that it does not still exist in some jurisdictions, but I think that it has been taken away from our road traffic Acts. There used to be a charge of reckless driving, which I imagine fell somewhere between driving dangerously and driving without due care and attention. Reckless driving is no longer a charge. 
The word ''reckless'' is used with tremendous caution in criminal cases because it is difficult to define. It has been particularly condemned in certain criminal damage cases. For example, what if someone slams down the telephone in a public kiosk when in a temper, and the thing breaks in half? It cannot necessarily be said that that person intended to break it in half. They were terribly angry because they could  not get through but, on the other hand, there is a certain degree of moral culpability in slamming it down. 
Case after case involves talking about recklessness and whether that is an essential element of an offence. All I would say to the Minister is that that is difficult territory. Judges find it extremely difficult to direct a jury on what ''reckless'' actually means. Does it mean negligently or carelessly? To what extent does recklessness involve knowledge? Directions to juries from judges over the years in cases using the word ''reckless'' have been fraught with difficulty. 
If the Minister thinks that it is essential to include subsection (2)(b), so be it. However, we are doing our duty in Committee by pointing out the problem with that word, of which he, as a very skilled lawyer, will be well aware. Will he ponder the position between now and Report to see whether any improvement could be made?

David Curry: We have listened to quite a lot of Latin phraseology today, in a little private discourse between the lawyers. Those of us who are not lawyers and are not familiar with that phraseology occasionally come across an Anglo-Saxon word that we think we understand, but then we see it in the context of the Bill and begin to wonder what on earth it can conceivably mean. I speak as a simple hack, not a lawyer, and I know that if I put the word into a piece, my editor would say, ''What do you mean by it?''
I had one rule when I was a Minister: I would never sign a letter that contained the word ''appropriate'', on the grounds that it always stood for something else. It meant ''right'', and ''not appropriate'' meant ''wrong'' or ''silly''. Yet I found that the word is used endlessly in Government to disguise what is actually meant. 
I take the point made in the analogy of the telephone. I have to tell my hon. Friend the Member for Woking that I am not well versed in the operations of photocopiers of the sophistication of those in Portcullis House. There are occasions when one seeks to make them do a simple task, and one is overcome by a very powerful urge to express one's disapproval in a physical form. Whether that would be described as a ''reckless'' action I am not quite sure. 
Surely, if ''reckless'' stays in the Bill, there has to be some test of what is meant by recklessness. All that the word is doing is standing as code for a much longer explanation of what is ''reasonable'', a word that is constantly used in the Bill. One would have to start by defining what ''reckless'' could conceivably mean before one could discover whether something was reckless or not; that must depend on particular circumstances. I realise that, in legislation, it is necessary at times to use particular words that are difficult to define, but about which one has an instinct as to what it is trying to do. That is why I think that ''not appropriate'' is such an indispensable phrase for Government. 
I hope that the Minister will think about the matter again. I looked at the word and thought, ''This is curious; it looks a rather direct word.'' Then I thought, ''What does it mean?'' I could write a significant dissertation on that in Anglo-Saxon and still not get us  very far. I am sure that the Minister would like to reflect on the matter.

Des Browne: I shall attempt to give the right hon. Gentleman and the hon. Member for Woking a relevant if not an appropriate response to their arguments.
The clause seeks to protect the integrity of the information on the register by interdicting—criminalising—behaviour that deliberately seeks to put information that is wrong on to the register or action that is carried out in a frame of mind in which the person could not care less about the consequences of his actions. That is my understanding of what ''recklessness'' means. In my days of practising criminal law it was a phrase that was well known to those of us who practised in the courts. It is not easily defined in the sense that the right hon. Member for Skipton and Ripon suggests. 
Mr. Curry rose—

Des Browne: With all due respect to the right hon. Gentleman, who is a wordsmith, my understanding is that recklessness as an alternative to intention is a common feature of the criminal law, but I will check if I am still up to date. In my view, ''reckless'' involves the state of mind of a person who does not care what the consequences of his actions are. Such a person, in this context, ought to be as culpable as someone who intends the consequences. That is why the clause is drafted as it is.

David Curry: It is important that the common understanding of the meaning of the word should not diverge too far from the strict legal understanding of its meaning. I do not think that the word ''reckless'' is used in common speech with the sort of absolutism—extreme intention—with which the Minister has used it. Similarly, the word ''decimate'' is used to mean wiping out, when in practice it means one in ten. If people were decimated, we would be talking about a relatively modest massacre. What matters is the way people understand the word in common parlance. Surely the Minister could find a better word. ''Reckless'' means a bit over the edge. It does not necessarily mean going hell for leather. He said he would try to find another word, and I think it would be helpful if he could.

Stephen McCabe: On a point of order, Ms Anderson. For the benefit of all members of the Committee, could I clarify that the word ''recklessly'' is being used in the same sense as it was being used in the previous amendment moved by the hon. Member for Woking. It would be awkward to discover that there were two different meanings for two different amendments where the same word was employed.

Janet Anderson: The hon. Gentleman's point is a matter for debate and not a point of order.

Des Browne: I am reminded of my early days as a solicitor in the west of Scotland when a man handed me two summonses, one for a breach of the peace and the other for being drunk and incapable. When I asked him how he was pleading, he said he was pleading not guilty to both as they occurred on separate occasions. I  said to him, ''What is the defence to the breach of the peace charge?'' He said, ''I was too drunk to be able to make that sort of noise. That is my defence.'' I said, ''Well, what is the defence to the being drunk and incapable charge.'' He said, ''I am a teetotaller.'' I said, ''There is an inconsistency here.'' He said, ''You are young. You will learn. There are two separate cases and two separate defences. Just get on with it.''
The hon. Member for Woking tabled an amendment to include ''reckless'' in one clause and an amendment to remove it from another clause. He understood its meaning in the one case and did not understand it in the other.

David Curry: It was not appropriate in the other one.

Des Browne: I understand exactly what the right hon. Gentleman is saying. If he wants an example of a word the misuse of which constantly irritates me, it is the word ''heartless''. It has come to mean something entirely different from its actual meaning. I remember a friend of mine suggesting on one occasion that I should assist him to sue somebody who suggested he was heartless. When I explained that it just meant he was unlucky he was astonished, because he had never used the word in that way. With respect to the right hon. Gentleman and the hon. Member for Woking, I do not think that ''reckless'' has moved into that phase. The word refers to the state of a person's mind and is well understood, particularly in the context of criminal law. It means what I say it means and people understand that.
We ought to discourage people from acting as if they could not care less what the consequences of their actions are when it comes to providing information for the register. Otherwise we will not be able to protect the integrity of the information in the register. Consequently, while I am prepared to see if I am still up to date with the present meaning of the word, at the moment I am defending inclusion in the clause.

[Derek Conway in the Chair]

Humfrey Malins: This has been a fascinating if short debate. I pay tribute to the hon. Member for Birmingham, Hall Green (Mr. McCabe), who intervened a moment ago to point out that we had put forward a word in one clause and were challenging it in another. I regret to say that the Minister knows the answer to this as well as I do—which is that lawyers are quite capable of arguing one case one day and the opposite the next.
The Minister has been kind enough to say that he will have a little think. Frankly, the dangers of ''reckless'' have been illustrated during the debate. That is the purpose of the debate. The concept of ''reckless'' as meaning one who could not care less is novel even to me, though I have heard that ''reckless'' means just giving no thought to the consequences of one's actions. The best answer, I suspect, Mr. Conway—I welcome you back to the Chair—is perhaps to say that we know what ''reckless'' means and do not need to say so, because any sensible person knows the meaning. The problem is that that brings problems in the courts. 
The Minister is going to reconsider the usage, and I cannot ask more of him. That is a generous offer, and I beg leave to ask to withdraw the amendment. 
Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 199, in clause 30, page 26, line 19, leave out 'two years' and insert 'one year'.

Derek Conway: With this it will be convenient to discuss the following amendments:
No. 200, in clause 30, page 26, line 21, leave out 'twelve' and insert 'six'. 
No. 202, in clause 31, page 27, line 17, leave out 'twelve' and insert 'six'.

Patrick Mercer: I welcome you back, Mr. Conway. I rise to address three amendments—

Richard Allan: On a point of order, Mr. Conway, I think that we are out of sequence. I think that we have moved on from the clause to which these amendments apply, having skipped over them. We now seem to be moving back again. I am confused.

Derek Conway: I do not think so, but I get confused myself from time to time. We are still on clause 30. We have not done clause stand part yet. It is often helpful if the Committee uses the running order rather than the amendment sheets.

Richard Allan: My amendment paper is wrong.

Derek Conway: The Committee is testing to make sure I am awake.

Humfrey Malins: On a point of order, Mr. Conway, I am confused. I have been given another bit of paper. I have just spoken to amendment No. 228, which relates to clause 30.
I now see, Mr. Conway—do forgive me. Amendments Nos. 199, 200 and 202 may now have been slipped into clause 30, whereas on an earlier bit of paper they were in clause 29. That is entirely my fault for not having an up-to-date bit of paper. May I be forgiven, but I think, Mr. Conway, when you called amendments Nos. 199, 200 and 202, you were entirely correct. That was my confusion, for which I apologise.

Derek Conway: That is quite all right. It is difficult when we are all hopping around the place. As long as we are all happily on clause 30 and amendment No. 199, we can have Mr. Mercer tell us his views.

Patrick Mercer: Thank you, Mr. Conway. I thought I understood what was going on, but I am now less certain. However, I thank you for your clarification.

Des Browne: You are better off ignoring it all.

Patrick Mercer: I leave that up to the Minister, as he intervenes from a sedentary position.
I am speaking to the three amendments, which I hope are short and probing. The first two apply to clause 30 and amendment No. 202 to clause 31. The first two are on providing false information and the third on tampering with the register. All three are intended to probe the Minister about length of sentence and consistency. I have no doubt that there is a simple explanation, which the Minister will make clear. 
On amendment No. 199, can the Minister explain why a term of imprisonment should not exceed two years? Why should it not be one year, as we propose in the amendment? 
Notwithstanding the comment below clause (30)(c), which states, 
''in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 . . . the reference in paragraph (b) to twelve months is to be read as a reference to six months'',
Amendment No. 200 would merely bring consistency in sentencing between England and Wales, and Scotland and Northern Ireland bringing, 
''a term not exceeding six months or . . . a fine'',
in both cases. 
Amendment No. 202 makes similar proposals. Where clause 31 states, 
''on summary conviction in England and Wales . . . imprisonment for a term not exceeding twelve months'',
the amendment would replace ''twelve months'' with ''six'' or a fine not exceeding the statutory maximum on both. That would bring consistency of sentencing between Scotland and Northern Ireland, and England and Wales. Can the Minister explain those three points?

Des Browne: Welcome to our Committee this afternoon, Mr. Conway.
Amendment No.199 would reduce the maximum penalty on indictment for providing false information from two years to one year. The one-year maximum would not reflect the seriousness of the offence. The hon. Gentleman seeks consistency; he will find it in the two-year maximum sentence for the broadly analogous offences of possession of false documents dealt with in clause 27. There has to be consistency in the Bill and in the structure of penalties. The offence of unauthorised disclosure of information from the register also attracts a maximum penalty of two years. That is why it is considered to be the appropriate penalty. That deals with matters on indictment. 
Matters that are proceeded with by way of summary procedure attract different and lesser penalties. The decision on how to proceed ought to reflect the seriousness of the offence. Prosecutors both north and south of the border—or, indeed, in any other part of the United Kingdom—will take into account the penalties available when deciding where to prosecute an offence given its seriousness. If the hon. Gentleman is looking for an analogous penalty outwith the Bill to show that it is proportionate, he will find an analogous penalty on false statements to procure a passport under section 36 of the Criminal Justice Act 1925 which is also set at two years. There has to be broad consistency over a range of similar types of offence. 
In summary conviction, the Bill provides a maximum penalty of twelve months' imprisonment for the offences in clauses 30 and 31 in England and Wales. Until the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to  12 months is to be read as a reference to six months. Amendments Nos. 200 and 202 would replace that with references to six months. The hon. Gentleman argued that that would bring them into line with Scotland and other parts of the UK. That is essentially the same as amendment No.196, which was introduced in relation to the offence of possession of false documents in clause 27. 
I resist the amendment for the same reasons that I resisted the amendments to clause 27. It is right that the Bill enables magistrates to make use of their extended—and indeed, in the context of the Criminal Justice Act 2003, their developed—sentencing powers in relation to those offences. In England and Wales that will be once the relevant provisions of the 2003 Act come into force. That is consistent. 
In the summary penalties, we seek to give courts in all parts of the United Kingdom the right to use maximum penalties, bearing in mind that the prosecutor will then have that range of penalties before him or her when deciding which court—and the nature of which jurisdiction—the prosecution will be taken in.

Patrick Mercer: Well, I regret asking that; it is all as clear as mud. No, it is absolutely clear, and I am most grateful to the Minister. I take his point about consistency and amendment No. 199, and I am sure that greater exposure to the magistrates benches, which I shall no doubt have in due course, would make clear why amendments Nos. 200 and 202 have been satisfactorily explained. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 30 ordered to stand part of the Bill.

Clause 31 - Tampering with the Register etc.

Patrick Mercer: I beg to move amendment No. 201, in clause 31, page 27, line 3, leave out subsection (4).
I do not understand why the subsection adds to the quality or interpretation of clause 31. If we removed it, I believe that the clause would be simpler and more straightforward in its application.

Richard Allan: I assume that this is a probing amendment. It carries on our earlier debate about territoriality. I find subsection (4) comforting; as I read it, it places the offence of tampering with the national identity register in the same category as offences such as war crimes, certain categories of sexual offence and so on, which, if committed abroad, can be treated as though they had been committed in the United Kingdom. That is important because the whole clause is an anti-cracker clause.

Des Browne: Hacker.

Richard Allan: People who programme computer systems often describe themselves as hackers. They do not see themselves as bad guys; they describe the bad guys as ''crackers'', who are not generously proportioned Scottish psychologists, but people who try to break into computer systems. We know from plenty of experience of attacks on online gambling  sites that many crackers operate from former eastern bloc states. We can anticipate that such crackers will be among the sources of attacks on the national identity register, if such attacks take place.
I hope that the Minister will assure us that he will have the legal powers to go after such people, but that still leaves the big question of enforcement. That is not an argument against having the legal powers, but it is worth putting on record that, as we sit here, attacks against businesses in the United Kingdom are going on, against which, effectively, no enforcement is taking place. Recently, our few specialist law enforcement officers have been dealing with child abuse image cases; it is worth bearing in mind that our resources are very limited. 
Although we are willing the legal means to go after people, we also need to will the means in terms of the bodies necessary to carry out prosecutions of that nature. Prosecuting somebody in a former eastern bloc country who has tried to break into a computer system is necessarily expensive and complex. I hope that the Minister can assure us that, to protect the integrity of United Kingdom citizens' data, there will be a serious intention to go after people who fall within the remit of that offence.

Des Browne: I am content to give Committee members the reassurances that they seek, and I shall do that quickly.
In many ways, this is a belt-and-braces provision; I shall explain why in a couple of minutes. It is similar but not identical to the jurisdiction under the Computer Misuse Act 1990. That similarity should show Committee members that the menace of activities abroad affecting information held in this country has exercised the mind of Parliament for some time, and that there is a formula for dealing with it, which is designed to do exactly what the hon. Member for Sheffield, Hallam described. 
Subsection (4) provides for extra-territorial effect in relation to the offence of tampering with the register and has the effect that where unauthorised modifications take place abroad it is ''immaterial'' whether 
''it is conduct of a British citizen.''
I will explain why that is important in a few minutes. 
It is clear that if the register is to be protected from unauthorised modification, it is axiomatic that we have to provide for an offence that will apply to modifications effected from abroad, whatever the nationality of the computer cracker. The register will, however, be located in the UK, so even when the location of a computer from which an unauthorised modification is effected is outside the UK, an offence under clause 31 would be completed in this country. That is why I described this as a belt-and-braces provision. 
There is a strong case for arguing that the UK courts would have jurisdiction over such extra-territorial behaviour, regardless of any express statutory reference. Moreover, Parliament could be  understood to intend that the UK courts should have jurisdiction over all unauthorised modifications of a register of the people who are resident in the UK. However, it is appropriate in this provision to make that clear and put it beyond doubt. 
Being mindful of the general principle of the common law of England—that the exercise of criminal jurisdiction does not extend to cover acts that are committed on land abroad—I took the view that the matter should be put beyond any doubt in the Bill. A statute that expressly provides for extra-territorial jurisdiction will, in the absence of further clear provision, only be regarded as covering such acts when they are committed by British subjects, therefore provision had to be made in subsection (4), in any event, for the offence to apply, regardless of nationality. 
For all those reasons, which are consistent with the protections that the hon. Member for Sheffield, Hallam would expect of this register, it is appropriate to have such specific provisions in this legislation. I trust that hon. Members will recognise the need for the provision of extra-territorial jurisdiction.

Geoffrey Clifton-Brown: I have been listening carefully to the Minister. It sounds as though he is breaking new ground and trying to legislate specifically for an offence that is committed abroad by a non-British national in a foreign jurisdiction, but the person would still be committing an offence in the UK. Am I correct? Are we breaking new ground?

Des Browne: With respect to the hon. Gentleman and as I understand it, we are not breaking new ground, because that jurisdiction is similar although not identical to the jurisdiction of the 1990 Act, which was, I hasten to add, enacted at the urging of a Government of the hon. Gentleman's persuasion. In that sense it is not new ground. The measure is included in recognition of the nature of the information technology world in which we live. People are able to attempt to do such things from abroad.
This specific provision in relation to people who are not British subjects is included because there is a rule of domestic jurisdiction that where a statute provides for extra-territorial jurisdiction, unless it is expressed otherwise, it applies only to British subjects. Therefore that has to be covered here. I repeat that it is arguable that since the act would have to be completed in the UK, where the register is located, our courts would have jurisdiction without this provision. However, if we are legislating for extra-territorial jurisdiction, it is as well specifically to state that that will apply to non-British nationals. 
People who are not British citizens or subjects commit criminal offences in any event in the jurisdiction of the UK. We bring our criminal law to bear on such people, so to that extent the provision is not new either. The hon. Member for Cotswold sought confirmation that such action was novel. It is not completely novel nor is it regular or usual; it has its roots in the 1990 Act.

Patrick Mercer: We have heard about extra-territorial jurisdiction—a discussion that was provoked by my hon. Friend the Member for Cotswold—while earlier we heard about the trousers of my right hon. Friend the Member for Skipton and Ripon being sent to the cleaners. We have now heard about the trousers, the belts and the braces, so, on that note, I declare myself satisfied. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause stand part of the Bill.

Richard Allan: A final subject that is worth putting on the record is the fact that the offences covered by the clause could be expensive for the Secretary of State. They could compromise the system in such a way that he might end up spending large amounts of public money to put it right again. The offences are serious. Clause 31(3)(a) covers conduct that causes a modification of information held in the system—in other words, the act of changing people's records—while I assume that subsection (3)(b) refers to virus-type attacks on the system that stop it functioning correctly.
I have another worry. It is worth examining the taking of information from the system so that it becomes compromised. To use some Latinate words, I am thinking specifically of biometric algorithms. The system itself will contain calculations and formulae that will be used to guarantee the integrity of biometric data and guarantee that they can be transmitted securely between a hand-held device, for example, and the central database. If such data were compromised and people got hold of them, that could lead to a need to rework the system completely—at great expense to the Secretary of State and, thus, to the public. 
I am a little worried that we have might not have covered such matters. I accept that they might be dealt with under the 1990 Act, but we must consider whether to reflect on the issue at a later date. 
I am in the unusual position of wanting to strengthen the Bill, whereas I usually want to weaken it. If we are to have a database, however, we want it to be protected and, in such circumstances, we must ensure that there are no loopholes, which people can get through to do something without being covered by the law. I understand that the Government are reviewing the 1990 Act because there are holes in it; there are forms of attack that do not seem to be covered by the Act. 
Similarly, I would not want us to put provisions on the statute book that allow people to break into the system and cause enormous public expense, but which, because of a technicality, leave that not actionable under law. I return to algorithms, the theft of which would not necessarily either modify the data or make the system unworkable, but might not be covered strictly under the offence. Other offences could apply and might be equally suitable, but surely it would be better to cover such offences explicitly under clause 31.

Des Browne: In no way do I hold myself up as an expert on algorithms. However, I know of a sufficient definition of modification at line 19 of clause 43, which I am confident covers the very circumstances that the hon. Gentleman has figured. With that confidence, I shall sit down. As always, between now and any other time that I might speak to the Bill, I shall reflect on how confident I have been. If I am less confident then, I will make it perfectly clear.
Question put and agreed to. 
Clause 31 ordered to stand part of the Bill. 
Clause 32 ordered to stand part of the Bill.

Clause 33 - Imposition of civil penalties

Humfrey Malins: I beg to move amendment No. 226, in clause 33, page 28, line 36, after 'notice', insert 'in writing'.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 38, in clause 33, page 28, line 45, at end insert
'including methods by which payment may be made by instalments'. 
No. 224, in clause 33, page 29, line 4, at end insert— 
'(g) set out the grounds of objection to such a penalty contained in section 34.'. 
No. 39, in clause 33, page 29, line 5, leave out '14' and insert '28'. 
No. 227, in clause 33, page 29, line 12, after 'question', insert 
'save a question of proper service of the notice'. 
Before I call the hon. Member for Woking, it might be helpful to hon. Members who wish to contribute if I warn them that there will be a Division in the House at 5 pm.

Humfrey Malins: Briefly, we are on the penalty issue. Amendment No. 226, requiring that the notice be given in writing, is not a good amendment, because I think that the notice will inevitably be given in writing. I do not see how else it could be given. This amendment was drafted too late at night, I am afraid.
Amendment No. 38 is about making provision, either in the Bill or in the mind of the Secretary of State, for the of payment of penalties in instalments, given that probably 90 per cent. of all fines in magistrates courts are paid in instalments. The issue is important, but there is no reference to instalments in the clause. Beyond that amendment I need not go. The Minister may have a fairly brief reply for me on the matters that I raised. I hope that he takes them on board, but I am sure that there will be codes of practice in respect of them. I will have something to say about objections to penalties under clause 34, but I assure the Minister that it will not be very much.

Des Browne: I shall deal very quickly with amendment No. 38, which, as I understand it, is the only amendment that the hon. Gentleman spoke to substantively. I give him the reassurance that, although it does not say in the Bill that payment of a penalty may be made in instalments, when the time comes to design the detail of the scheme, we will  consider making arrangements for penalties to be dealt with in such a way. The important thing is that clause 33(3)(d) does not preclude payment by instalment. I do not think it necessary additionally to refer expressly to instalments in the clause, but I give the undertaking that it is almost certain that there will be provision to allow them.

Humfrey Malins: On which basis, I am delighted to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Des Browne: I beg to move amendment No. 189, in clause 33, page 29, line 14, after 'penalty' insert—
'( ) whether the imposition of the penalty was unreasonable;'.

Derek Conway: With this it will be convenient to discuss Government amendments Nos. 190 to 193.

Des Browne: This is a good day for the Opposition, in that these Government amendments follow our useful debates on civil penalties under amendments Nos. 33 and 117, which were tabled by the hon. Member for Newark (Patrick Mercer). As I said during last Thursday's debate, the Secretary of State will of course exercise his discretion reasonably when imposing civil penalties; indeed, he is required so to do. Where he is aware that a person has a reasonable excuse for having breached an obligation, a penalty will not be imposed.
I also said that the Secretary of State will have regard to a person's financial circumstances before determining the penalty. Furthermore, I have always taken the view that it will be open to a person to raise reasonable excuses at both the objection and appeal stages, notwithstanding that the Bill refers to two grounds of objection only—namely as to whether someone is liable to pay and whether the penalty is too high. Mindful of the concerns raised in the debate on amendments Nos. 33 and 117, I tabled these Government amendments to put beyond doubt the fact that objections and appeals may be brought on the ground that the circumstances make the imposition of a penalty unreasonable. 
The amendments will not place an obligation on the Secretary of State to consider the circumstances of every contravention before imposing a penalty. That would be akin to a unilateral hearing and would not be appropriate in the context of a civil penalty scheme. I say again that, where the Secretary of State is aware of surrounding circumstances that would make it unreasonable to impose a penalty, he will not impose one. In that sense, penalties will not be imposed automatically. 
The aim is not to generate revenue, but to encourage people to comply with the requirements imposed on them. Where that can be achieved by writing to a person and warning them that they are liable to a civil penalty, as opposed to immediately imposing the penalty, that is the route that will be taken. 
Amendments Nos. 190 and 191 will provide an extra ground on which people can object to penalties under clause 34. That ground is that the circumstances  of the contravention in respect of which a person is liable make the imposition of a penalty unreasonable. Amendments Nos. 192 and 193 use the same formula to provide an extra ground of appeal to the court under clause 35, and amendment No. 189 makes it clear that no question as to the reasonableness of imposing the penalty may be raised in proceedings for recovery of a penalty by the Secretary of State. The proper forum for that question is the objection on appeal stage under clauses 34 and 35. 
These amendments are specifically designed to respond to amendments Nos. 33 and 117, which I resisted and which hon. Members withdrew. I said that I would respond to them. I trust that the fact that I have taken their comments on board and reflected them appropriately in the legislation satisfies them. I commend the amendments to the Committee.

Richard Allan: The amendments are welcome in terms of including challenges on the grounds of ''reasonableness'' in the objections procedure. I hope that the Minister can clarity amendment No. 189 and the proceedings for recovery of a penalty. I assume that once the objections and appeals procedures have been exhausted, we will be in a court situation. The courts will not consider ''reasonableness'', as amendment No. 189 suggests, because it will have been considered in the objections and the appeals procedures. What will such a court case look like such that it will not consider those grounds?
It would be helpful to understand what we mean by proceedings for recovery of a penalty that will not examine anything. The proceedings will simply involve saying, ''You owe us the money. Pay up''. How will that work in practice as far as the individual is concerned? What will happen if they do not pay? We are always interested it that as a back-stop position.

Humfrey Malins: I am grateful to the Minister for how he introduced his amendments. We remain content.

Des Browne: The hon. Member for Sheffield, Hallam asks for more flesh on the bones of the court proceedings. I will give him that quickly.
The Secretary of State can enforce a penalty by issuing a claim to the county court for judgment that the defendant owes a debt to him. A copy of the claim form will be sent to the defendant, who can agree that he owes the money or opt to dispute the claim. While it will be open to him to dispute the claim, by virtue of clause 33(6) no question can be raised about the amount of the penalty, whether he is liable to it or whether—given the surrounding circumstances—its imposition is reasonable. That is a matter that should be dealt with early in the proceedings. The proper forum for those issues to be raised is the objections stage or the appeals stage. 
Once the Secretary of State has obtained a judgment that the debt is owed to him by the defendant, he can apply to the court for enforcement. There are a number of ways that the judgment can be enforced. It is my understanding that none of those will result in people going to prison. The court stage involves the recovery of a penalty that has already been through the process. 
Amendment agreed to. 
Clause 33, as amended, ordered to stand part of the Bill.

Clause 34 - Objection to penalty

Amendments made: No. 190, in clause 34, page 29, line 20, leave out 'both' and insert 'more'. 
No. 191, in clause 34, page 29, line 22, at end insert— 
'( ) that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable;'.—[Mr. Browne.]

Humfrey Malins: I beg to move amendment No. 203, in clause 34, page 29, line 23, at end insert—
'(c) a misidentification has occurred.'. 
The amendment is not necessary. The reference to a ''misidentification'' involves the same thing as subsection 1(a). I have a lot to say about the clause generally and I will talk to the Minister about that during the next Division. On that basis, with my apologies, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Clause 34, as amended, ordered to stand part of the Bill.

Clause 35 - Appeals against penalties

Amendments made: No. 192, in clause 35, page 30, line 6, leave out 'both' and insert 'more'. 
No. 193, in clause 35, page 30, line 7, leave out 'or' and insert— 
'( ) that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable;'.—[Mr. Browne.]

Humfrey Malins: I beg to move amendment No. 40, in clause 35, page 30, line 14, leave out 'or'.

Derek Conway: With this it will be convenient to discuss amendment No. 41, in clause 35, page 30, line 15, at end insert
'or 
(d) increase the penalty.'.

Humfrey Malins: Amendment No. 41 is the one to which I am keen to get a response. It relates to what the court can do when people appeal to it. It can allow the appeal and cancel or reduce the penalty, or dismiss the appeal. We propose that it should be able to increase the penalty. The discretion of the court to increase a penalty is sometimes useful, because it can act as a disincentive. I have regularly known prosecutors appeal against a sentence to a higher court and get it increased. When one dismisses an appeal, can one increase the penalty or not? One probably ought to be able to, but the purpose of the amendment is to probe.

Des Browne: The hon. Gentleman will be aware that at the objections stage the Secretary of State has the power to increase the penalty. That is relevant. 
Sitting suspended for Divisions in the House. 
On resuming—

Des Browne: I was responding on amendments Nos. 40 and 41, which we are considering together. We heard that their effect would be to give a court considering an appeal against a penalty the power to increase that penalty, in addition to the options of reducing or cancelling the penalty or dismissing the appeal.
This is not necessary. As I said before we adjourned for the Divisions, the Secretary of State has the power to increase a penalty as a result of an objection made under clause 34(3). At that stage, the Secretary of State will have an opportunity to ascertain the full circumstances of any breach that justifies a penalty and of the individual concerned. That stage is appropriate for the penalty to be fixed, once and for all. 
The purpose of clause 35 is to give individuals access to the court for a re-hearing of the Secretary of State's decision to impose a penalty. The significant disincentive of the possibility of an increased penalty would act against the interests of the appellant when the Secretary of State had imposed a penalty and against there being an opportunity to ascertain all the relevant facts. 
In those circumstances, I am confident that the provisions are fair and equitable; I see no compelling need to change them. However, I also remind the Committee that this is not a revenue-raising power. It is designed to encourage people to conform to the scheme and not commit any of the offences that are relevant to these penalties. I hope that I have reassured the hon. Member for Woking that we have a coherent and fair regime of civil penalties and I ask that the amendment be withdrawn.

Humfrey Malins: I am grateful to the Minister and on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Question proposed, That the clause, as amended, stand part of the Bill.

Richard Allan: Just to flesh out what this means from a citizen's point of view—what would happen with the expenses of an appeal under this clause?
If an individual has been served with an order, gone through an objection on paper to the Secretary of State and now wishes to appeal the decision, am I right in assuming that anyone has the right of appeal, whatever the outcome of the objection? If they then choose to exercise that right, are there any costs associated, whether or not the appeal is successful? What is the Government's intention? The procedure will clearly cost somebody money if a county court has to take time to sit and hear an appeal.

Des Browne: My understanding—which will be subject to further qualification if not correct—is that the Secretary of State would not apply for a cost order with any appeal that had to go before the court.  However, it would be inappropriate for the Secretary of State to bar an individual from the opportunity of applying for a cost order were they to be successful in an appeal and had incurred expenses. I would be content to leave that matter to the discretion of the court.
I can give an undertaking to the Committee that the Secretary of State is not presently minded to consider applying for a cost order in the event of an unsuccessful appeal by an individual.

Humfrey Malins: That the matter of costs should lie within the discretion of the courts on most occasions is absolutely right. I am grateful for the Minister's answer.

Des Browne: I implied that the matter would lie within the discretion of the court, but that neither the Secretary of State nor I would not seek cost orders in the context of such appeals. However, that would not be a rule to be applied to the individual, who may want to take their case to appeal and may be successful. They would have to make their arguments on the basis of the normal arguments.

Richard Allan: That is helpful. Perhaps the Minister will clarify the other point, which was that 100 per cent. of people who have been through the objection process can ask for an appeal if they choose to do so. Is there a narrowing of eligibility, because under clause 35 it seems as though there is not? Is everybody who is issued with the original notice a potential appellant, with no weeding out along the way?

Des Browne: I see no way in which they can be weeded out, as the hon. Gentleman suggests—although that seems an inappropriate phrase. People have to be mindful of the danger of the process being abused, but that would be a matter for the courts. If appeals without merit were taken in large numbers, the Secretary of State may have to revise his view on costs.
Question put and agreed to. 
Clause 35, as amended, ordered to stand part of the Bill. 
Clause 36 ordered to stand part of the Bill.

Clause 37 - Fees in respect of functions

Question proposed, That the clause stand part of the Bill.

Richard Allan: I understood, having read the record of our proceedings, that on Tuesday there was a wider debate on charges generally, and one specifically about charges that might kick-in in respect of modification of entries on the register. The Minister's response did not advance a definitive position, but suggested that there might be a distinction between changes that require the modification of the card itself, and therefore a reissue of the card that might be chargeable, and ones that did not require the card to be reissued. There remains a concern that that would also be permitted under  clause 37(1)(a) and that charges could be made for modifications of the data that is held.
If we are saying to people, ''You are under quite a serious legal obligation to modify the record'' and they do so, it would be inappropriate for them to be hit with a charge. I question whether that would be appropriate, even where a card has to be reissued, given that the driving licence, as I understand it, has a similar provision where one is required to notify a change of address. The address is printed on the driving licence and therefore a card has to be reissued, but I understand that no charge is made. 
I am thinking particularly of younger people, about whom we talked at the beginning of our proceedings, who change address regularly. If the address is on the ID card and they are required to change their address—and hit with an additional fee each time—the Government's own figures on charges, which the Minister knows we dispute, which show a one-off payment of 85 quid over 10 years that is not particularly onerous, starts to fall apart. 
It is important that when we are talking about fees we understand the totality of the matter and people understand whether they are being asked genuinely to pay 85 quid every 10 years and nothing in between, or whether under clause 37 other charges will be levied against them.

Des Browne: The hon. Gentleman is right to understand that the clause provides the power that is required to set fees for a wide range of functions associated with the scheme. It is intended that when the scheme is established, overall running costs will be covered by a combination of charges for applications, issue of cards, identity verification services provided by the scheme, and related services, such as accreditation.
The hon. Gentleman concentrated on an issue that we have already debated at some length, but I am reluctant to go into the same detail on that issue as I did previously, because I do not have before me exactly what was said then. I was confident that what I said then was correct; I rest on that and do not wish inadvertently to contradict myself. However, I will say that the clause provides a power to charge, but it is not presently planned to charge for notification where no new card is to be issued, and I do not envisage that that will ever be planned. 
The hon. Gentleman postulates a situation in which a card has to be reissued because an address will be on the face of the card. In keeping with current advice, it is not the intention to issue cards with the address printed on them. That is for obvious reasons; people might well not want that information to be on the card, or it might be overlooked in innocent circumstances but used for malign purposes. 
Question put and agreed to. 
Clause 37 ordered to stand part of the Bill.

Clause 38 - Amendment of Consular Fees Act 1980

Question proposed, That the clause stand part of the Bill.

Geoffrey Clifton-Brown: I would be grateful if the Minister clarified his thinking on this clause. It allows cross-subsidy with regard to certain groups of people applying for passports. When the Bill comes into effect, the identity card will be an integral part of applying for a passport. Pensioners who apply for a passport have been receiving them free of charge for the last little while; will that also extend to ID cards?

Des Browne: I rise to respond, in so far as I can, to the hon. Gentleman's point. The policy in relation to ID cards for those pensioners who are entitled to free passports has not yet been fixed. However, there is a logic in what the hon. Gentleman says, and I will bear his comments in mind when the time comes to make those decisions, and I am sure that the Secretary of State will, too.
The clause amends the statutory basis of passport fees to provide explicit powers to cross-subsidise between applications and to make exemptions. It will come into effect two months after Royal Assent, by virtue of clause 45(5). 
This provision is necessary to moderate the impact on passport fees of the development costs of passport initiatives, such as the introduction of biometrics and of interviews for adult first-time applicants. Otherwise, there would have to be a differentiation of fee for those first-time applicants whom it is intended will, for very good security reasons, be required to undergo a face-to-face interview comparatively quickly. The amendments the clause makes to the Consular Fees Act 1980 will allow the recovery of such costs to be spread across several years, and across all types of passport application, not just those directly affected. That is fair. 
The initiatives currently being pursued by the UK Passport Service are intended to improve the security of the British passport—which is to the benefit of all of us—and to maintain its acceptability for international travel. Many of them will also in due course be incorporated into the ID card scheme, but facilitating the ID card scheme is not the principal purpose. 
Clause 38 makes it possible for free passports for those born before 2 September 1929 to be funded from passport fees; that replaces the current arrangement of supporting that from the general Home Office funds. That is also fair, because it is a reflection of the debt we owe those people; we all agree that that should be reflected in this modest measure. 
I must emphasise that there remains a provision in the 1980 Act that all fees prescribed shall be levied, accounted for and applied in accordance with regulations made by the Secretary of State, with the approval of the Treasury. Any proposed passport fee increase will therefore remain subject to Treasury scrutiny and approval. 
Question put and agreed to. 
Clause 38 ordered to stand part of the Bill.

Clause 39 - Verifying information provided

Question proposed, That the clause stand part of the Bill.

Richard Allan: It would be helpful to have a brief moment of clarification. Clause 39 potentially heralds a comprehensive change in the way that information provided for the purpose of applying for passports can be checked and cross-referenced with other Government Departments and agencies. I want it to be made clear that that is the purpose of the clause. The explanatory notes say that it echoes provisions under clause 11 under which such information is available for ID cards and the national identity card register. I want to be absolutely clear and make sure that we have on the record the fact that, when a person applies for a passport and regulations are brought in under the clause, there will be significant additional cross-checking with other Departments than that which currently takes place.
It is important as we consider the clauses that we can explore fully and precisely what they mean, so that citizens are aware of what they will do and, when we reach our final judgment on the Bill, we will know about all the changes that will take place. The clause is significant in that the passport procedure is one in which 80 per cent. of the population currently go through. People will want to know if, under the Bill, when they apply for a passport, cross checks will be made with other Departments about the information that they have supplied to the Passport Service.

Des Browne: The hon. Gentleman is right in that the clause mirrors for passport applications the identity checking provisions for national identity register enrolment under clause 11. The provisions for passport applications will be brought into effect by clause 45(5) two months after Royal Assent by the same method as the previous clause that we considered. The genesis of the amendment lies in the Cabinet Office study on identity fraud that reported about 30 months ago. It recommended greater use of biographical checks on passport applications. Indeed, that recommendation has led to that method of checking being incorporated into the identity card scheme, rather than the ID system being devised for passports.
Concerns were expressed about passports and it was recommended that greater use of biographical checks be carried out. The UK Passport Service developed and introduced a large-scale pilot scheme for checking information provided by passport applications against public and private sector databases. The pilot has been running for a year in the Glasgow passport office and the next step will be to roll it out nationally for all adult first-time passport applications. It will then be used in conjunction with the interviews that I announced on 20 December to introduce the highest possible standard of identity authentication for adult first-time passport applications. 
The powers exercised by the Home Secretary under which the Crown issues passports already enable the collection of information from passport applicants to check their identity. The clause will put beyond doubt the ability of the UK Passport Service to approach other Government organisations to require them to check against their records and confirm to the UKPS whether or not the details in a given passport application match a genuine identity.

Richard Allan: Will the Minister say whether the results of the Glasgow large-scale pilot scheme have been published or will be published, so that we can understand the extent to which it has revealed problems that the biographical checks have enabled to be resolved?

Des Browne: I regret that I am unable to give the hon. Gentleman a specific answer to his question. I will provide him and other members of the Committee with a response within days.
The clause also has the effect that requirements to provide information could be imposed on other persons specified in an order, which will be subject to the affirmative resolution procedure. Private organisations or credit reference agencies, for example, could be specified in such an order. The provisions of the clause are needed to enable the UKPS to protect the integrity and international acceptability of the British passport and to protect individuals from misuse of their identity. 
Question put and agreed to. 
Clause 39 ordered to stand part of the Bill.

Clause 40 - Amendments of legislation

Question proposed, That the clause stand part of the Bill.

Geoffrey Clifton-Brown: Will the Minister answer one simple question? When a passport is withdrawn as a result of an offence under the Football Spectators Act 1989 and the identity card as a valid travel document is also withdrawn, how will the people involved access other Government services? If they cannot, the provision could be a real imposition. A solution to the problem is that presumably it would be possible to bar electronically the cards from exiting the country. How will the system work?

Des Browne: The hon. Gentleman has raised a reasonable point. In the event that, under the Football Spectators Act 1989 and the Criminal Justice and Police Act 2001, identity cards that are suitable for travel are surrendered as well as passports in connection with football orders, he is absolutely right. Those individuals will have to be allowed to have an identity card that allows them access to services if, indeed, that were necessary. Therefore there will need to be a non-travel variant of the ID card that can be issued to such people in those circumstances.
It may well be that technological advances mean that the issue of a non-travel variant of the ID card  will not require an exchange of cards. The card may be disabled for international travel. However, that would depend on the ability of those countries in the European Union for which an ID will be used for travel to read a card that has been disabled in that way. It is likely that this situation will occur only when this country has e-borders; there will be embarkation controls and people will not be able to leave our country without the authorities knowing that their ID card used as a travel document has been disabled. The hon. Gentleman's comments are very sensible. Assuming that the technology allows for it, a non-travel variant of the ID card that is not acceptable for travel may not involve the exchange of cards. 
This information may be of some interest to Committee members. We have been trialling an asylum seekers registration card that can be disabled in that way. The card can be disabled for payment of support if an asylum seeker fails to meet the conditions of reporting that are required for him or her. That suggests that such technology is available, but we will only know in the fullness of time whether it would be available on the scale that would be necessary for ID cards. 
Question put and agreed to. 
Clause 40 ordered to stand part of the Bill. 
Clauses 41 to 44 ordered to stand part of the Bill.

Clause 45 - Short title, repeals, commencement,

Humfrey Malins: I beg to move amendment No. 110, in page 38, line 9, after 'the', insert 'National Registration and'.
I could entertain the Committee for quite a long time on this amendment but I will not. I ask the Minister for a brief response to a brief introduction. 
The Bill is about the database, rather than the card. The whole public discussion over the last year or two has centred on ID cards and excluded the database. As the debates have progressed it has become clear that the purpose of the Bill and many of its most worrying contents relate to the register and the information kept thereon. It would be a better reflection of the Bill if the title were not simply the ''Identity Cards Bill'' but something wider, such as the national registration and identity cards Bill.

Richard Allan: I support the amendment. Many of the purposes that the Government wish to achieve will be done through the provisions of the national identity register. The ID cards are an optional extra. Once most of the population are equipped with biometric passports, the ID card will be functionally redundant. I suspect that, at some point in future, a rational decision will be taken not to issue a separate ID card; if someone has a biometric passport, they will be able to leave it at that and not bother with the ID card at all, because the two are functionally equivalent, assuming that the register is there. The title suggested by the hon. Member for Woking would stand the test of time better than the existing title, in respect of having an Act that does what it says on the  box and that tells the public precisely what kind of innovation it is introducing.

Des Browne: Earlier in our deliberations I listened carefully to an exhortation by the right hon. Member for Skipton and Ripon to use language that people understand. It seems that the people of this country clearly understand identity cards. Indeed, interestingly enough, the identity card scheme of 1939 was introduced under the National Registration Act 1939. However, I pray in aid the logic of the right hon. Gentleman: how many people remember that distinction? How many of those who carried that card referred to their national registration card, and not their ID card?
I have some sympathy for the argument of the hon. Member for Woking, and I understand the logic of his suggestion. However, the process involved an earlier consultation, and the response from the public made it perfectly clear that they understood the concept of identity cards. Now it would appear that they also understand the concept of the register to support the cards. It would be unnecessarily confusing for us to change at this stage in the debate. Much as I accept that the hon. Gentleman's argument is persuasive, I cannot be persuaded by it, and I resist the amendment.

Humfrey Malins: I am grateful to the Minister for taking that point on board. It might have been better if we had given the Bill a different title right at the beginning but, having got so far, and having noted the Minister's interesting point about the second world war cards, I shall not press the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 45 ordered to stand part of the Bill. 
Schedule 2 agreed to.

Derek Conway: Before I put the final Question to the Committee, on behalf of Janet Anderson and myself I would like to thank the Clerk, who has served our Committee extraordinarily efficiently, the staff of the Serjeant at Arms Department and the Official Report, and the police for ensuring that our proceedings were in order. We also thank members of the Committee and the usual channels for their co-operation with the Chairmen.

Humfrey Malins: On a point of order, Mr. Conway. On behalf of Conservative Members, I pay a warm tribute to you and Ms Anderson for the charming, courteous and efficient way in which you have dealt with the Committee. It has genuinely been a pleasure to serve under your chairmanship and that of Ms Anderson.
As always, our thanks extend to Hansard, the Serjeant at Arms Department, the police and the Doorkeepers for their excellent and supportive work. I agree with you entirely, Mr. Conway, that we should give a particular mention to our excellent Clerk, Mr. Colin Lee, who could not have been more helpful to any Committee member who sought his advice on any technical matter. He has behaved magnificently. 
I thank my right hon. and hon. Friends. My hon. Friend the Member for Cotswold and my right hon. Friend the Member for Skipton and Ripon are in their place. I thank them both for their contributions to the  Committee, which has been a pleasant Committee most of the time. In fact, it has been fun in the sense that we have had some enjoyable and worthwhile debates. We have had our difficult moments, but on the other hand we have done our best to scrutinise the Bill. 
The Minister has been unfailingly helpful and courteous to all of us, and I thank him warmly for his approach, which has been typical of his manner throughout his time in office so far. I thank the usual channels for their assistance to all of us.

Richard Allan: Further to that point of order, Mr. Conway. I similarly extend the thanks of Liberal Democrat Members and the usual courtesies to all those who have assisted our proceedings, and particularly to you and Ms Anderson. As the hon. Member for Woking said, this Committee has been very enjoyable, although from our point of view a little too brief. We would have wished to spend a couple more happy weeks discussing the issues. That being said, it has been enjoyable. The Minister has responded very fully, and that has been helpful. We have a lot on the record from this Committee, and that will be useful.
The Minister has not yet entirely persuaded us of his point of view, but the Committee has been worth while in that it has done what it should: it has got on the record a significant extra degree of clarification about the details of the legislation. I thank again all those who served us so well.

Des Browne: Further to that point of order, Mr. Conway. I want to associate myself with the sentiments expressed by the hon. Members for Woking and for Sheffield, Hallam. I will not detain the Committee, but I would fail in my duty if I did not say that, in my view, we have had a full, honest and open discussion, in an appropriate spirit, of an important Bill that will affect us all.
I had some differences with Opposition Committee members about the need for a programme motion, but I believe that it helped. It provided some discipline in the timetabling of our proceedings, and I would argue that we have been able to debate nearly all the 45 clauses and two schedules in some detail. However, there are issues to which we shall return on Report. 
I should like to thank Opposition Committee members, in particular the hon. Members for Woking, for Newark and for Sheffield, Hallam, for their helpful probing amendments. I thank all Committee members for their contributions, and in particular my hon. Friends for their support throughout the proceedings. I have agreed to take some matters away to reflect on, and I have written two letters to you, Mr. Conway, to provide more detailed information for the benefit of all Committee members. If our proceedings today caused a need for a further letter, I shall send that post haste. 
I also thank the Clerk, for his advice and support, the officials, Hansard, the Doorkeepers and the police, who have ensured that our proceedings have run smoothly. Without the support that we have in this  House, it would be much more difficult to get through difficult proceedings, never mind at the pace at which we got through these. 
Perhaps unusually, I should like to thank the Whips for the way in which they helped us reach the end of  the Committee. Finally, I thank Ms Anderson and you, Mr. Conway, for your courtesy, unfailing understanding and the sense of humour with which you chaired the proceedings. 
Bill, as amended, to be reported. 
Committee rose at two minutes past Six o'clock.